On January 2, 2024, the Court of Appeals of Georgia decided Martin v. State[i], which is instructive regarding probation searches and the validity of the search against a co-occupant of a residence. The relevant facts of Martin are as follows:
The evidence shows that the search in question was of a bedroom Martin shared with Tomalynn Johnson and was conducted by Johnson’s probation officer. Johnson had entered a negotiated guilty plea to possession of methamphetamine and was sentenced to three years of probation. One of the special conditions of her probation was that she waived her rights under the Fourth Amendment and agreed to submit to searches of her “person, residence, papers, vehicle, and/or effects at any time of day or night without a search warrant whenever requested to do so by a [p]robation [o]fficer … upon reasonable cause to believe that [she was] in violation of probation or otherwise acting in violation of the law. …” A general condition of her probation prohibited her from “chang[ing] her place of abode … without permission of the [p]robation [o]fficer[,]” which necessarily required her to keep her probation officer informed about where she was living. See also OCGA § 42-8-36 (a) (1) (“It shall be the duty of a probationer, as a condition of probation, to keep his or her officer informed as to his or her residence.”).
Johnson’s probation officer attempted to conduct a check on her residence after Johnson had updated her address to 168 North Main Street. The probation officer went to that address and was told that Johnson was staying at 170 North Main Street, where Martin and his sister lived.
The probation officer went to the 170 North Main Street address. Martin’s sister answered the door and told the probation officer that Johnson was there. Johnson claimed she had been staying there “about two or three weeks.” The sister knocked on the door of the bedroom Johnson shared with Martin, and Johnson came out. Because Johnson had tested positive for methamphetamine the week before and had given an incorrect address, the probation officer decided to conduct a search.
The probation officer told Johnson that he wanted to check the bedroom. He entered the bedroom and saw Martin getting out of the bed. The probation officer had Johnson and Martin sit in the living room to secure the area, and then searched the bedroom Johnson and Martin shared. Martin asked the probation officer for a shirt and to get him a cigarette, but he did not object to the search.
Between a night stand and the bed, the officer found a black bag that contained the drugs that formed the basis of Martin’s charges. The probation officer did not know whose bag it was, but it was in the room where Johnson was staying, and it could have been hers, so he searched it.[ii]
Johnson and Martin were both charged with felony drug crimes. Johnson pleaded guilty and then testified at Martin’s trial that all the drugs in the bedroom belonged to Martin. Martin filed a motion to suppress the drugs found in the bedroom, and the trial court denied the motion.
On appeal, Martin argued that the trial court erred in denying his motion to suppress because the probation officer’s search, based on Johnson’s probation Fourth Amendment waiver, violated his rights under the Fourth Amendment.
The court of appeals then examined the legal principles regarding searches of probationers and search waivers of probationers. The court stated
[A] probationer [who has executed a Fourth Amendment waiver] may be subject to a warrantless search if there is reasonable suspicion of criminal activity[,]” Moran v. State, 302 Ga. 162, 165 (2) (805 SE2d 856) (2017), or “for the purpose of monitoring the extent of the [probationer’s] compliance (or lack of compliance) with the terms of her probation[,]” Luke v. State, 178 Ga. App. 614, 616 (2) (344 SE2d 452) (1986).
[T]he general rule is that the police can search a probationer, who is subject to such a special condition of probation [waiving her Fourth Amendment rights and agreeing to searches of her person, property, residence, and vehicle], at any time, day or night, and with or without a warrant, provided there exists a reasonable or good-faith suspicion for the search, that is, the police must not merely be acting in bad faith or in an arbitrary and capricious manner (such as searching to harass [the] probationer).
Day v. State, 367 Ga. App. 803, 806 (1) (888 SE2d 608) (2023) (citations, punctuation and footnote omitted).[iii]
Martin argued that the probation officer exceeded the permissible scope of his visit by searching the bedroom when he had come to verify Johnson’s address. The court noted that Johnson had recently reported that she was living at 168 North Main Street. She also recently tested positive for methamphetamine. Thus, the probation officer went to Johnson’s residence to verify her location and learned that she was actually living at 170 North Main Street. The probation officer went to that location and spoke to Johnson’s sister, who verified that Johnson lived there and was in a bedroom. Based on Johnson’s positive drug test and her failure to report her new address, he conducted a search of the bedroom where she and Martin, who was sleeping in the bed when the officer arrived, were located. The court of appeals then held that search was conducted in accordance with a “legitimate operation of the probation supervision process rather than by some other, more nefarious motive,” and therefore did not violate the Fourth Amendment as to Johnson.
The court then examined if the search violated the Fourth Amendment as it applied to Martin. The court noted the relevant legal principles and stated
[A] warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” Georgia v. Randolph, 547 U. S. 103, 120 (II) (D) (126 SCt 1515, 164 LE2d 208) (2006) (emphasis supplied). But if the physically present resident does not expressly refuse consent, the warrantless search based on a co-resident’s consent is permissible . . .” Id. at 121 (II) (E) . . . And “law enforcement officers are not required to take affirmative steps to give a co-occupant/defendant an opportunity to object to their entry into the residence and search before acting on the permission already granted by a co-occupant.” State v. Lee, 349 Ga. App. 181, 181 (825 SE2d 575) (2019). . . So the search based on Johnson’s consent via Fourth Amendment waiver was legally authorized. See Rockholt v. State, 291 Ga. 85, 88 (2) (727 SE2d 492) (2012) (search was properly conducted because homeowner consented, and although defendant may have had a reasonable expectation of privacy due to the fact that he was an overnight visitor at the residence, he was physically present but failed to express any refusal of consent or any objection to search); Brown v. State, 288 Ga. 404, 406 (2) n. 3 (703 SE2d 624) (2010) (warrantless search authorized where homeowner gave consent to search and no evidence the defendant, even if deemed a co-tenant, expressly objected to search or that defendant was removed from the residence by law enforcement for the purpose of avoiding a possible objection). See also United States v. Watkins, 760 F3d 1271, 1281 (II) (A) (11th Cir. 2014) (Randolph, supra, is interpreted narrowly to restrict the circumstances under which a co-occupant’s actions rendered a search unreasonable); United States v. Harris, 526 F3d 1334, 1339 (I) (11th Cir. 2008) (taxi passenger who did not “actually express a refusal” to search when driver consented was not covered by Randolph, supra).[iv]
Thus, if a co-tenant is present during the consent and does not expressly object, the search is reasonable under the Fourth Amendment. Further, the police do not have to take “affirmative steps” to give that person an “opportunity to object.”
In Martin’s case, the court of appeals noted that there was no evidence that Martin, who was present, objected to the search. As such, the search did not violate the Fourth Amendment as it pertained to Martin.
In summary, the search of the bedroom was reasonable under the Fourth Amendment as applied to Johnson based on her waiver, her positive drug test, and her failure to report her new address. The search did not violate the Fourth Amendment as applied to Martin because it was a reasonable probation search under the Fourth Amendment and he did not object to the search.
Thus, the court of appeals affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] A23A1421 (Ga. App. Decided January 2, 2024)
[ii] Id. at 2-4
[iii] Id. at 4-5 (emphasis added)
[iv] Id. at 6-8 (emphasis added)
